LALITA BAI Vs. AATMARAM

JUDGEMENT

(1.) The present second appeal has been filed by defendants no.1, 2 and 4 against the judgment dtd. 27/10/2016 whereby the learned Civil Jude, Class-II Garoth, district Mandsaur decreed the suit and judgment and decree dtd. 12/1/2021 whereby the learned Additional District Judge, Garoth, district Mandsaur has dismissed the civil appeal.

(2.) The facts of the case in brief are that the respondents/plaintiffs filed a civil suit before the learned trial Court against the appellants/defendants No. 1, 2 and 4 in respect of suit lands bearing survey nos.181, 234, 248 and 255 situated at village Kachhaliya, Tehsil Garoth, District Mandsaur (M.P.) for the relief of declaration of title and partition to the extent of 1/7 th share so also for declaration of sale deed executed by appellants/defendants No. 1, 2 in favour of appellant/defendant No. 4 to be null and void qua the interest of the respondents/plaintiffs in the suit properties and also for permanent injunction. The appellants/defendants averred in the plaint that the suit properties belonged to the common male ancestor late Bhanwarlal ie. father of respondents/plaintiffs No. 1, 3 to 6 and husband of appellant/defendant No. 1 namely late Kanhaiyalal and husband of respondent/plaintiff No. 2. The suit properties stood recorded in the name of late Bhanwarlal during his life time and after his death which occurred on 11/12/1997, the name of appellants/defendants No. 1, 2 along with the name of respondents/plaintiffs No. 1 and 2 came to be recorded at the instance of the appellants/defendant No. 1 behind the back of the respondents/plaintiffs. The appellants /defendant No. 1 also applied for partition under Sec. 178 of MPLRC and secured the partition order and on the basis of the same sold the lands bearing survey no. 234/1 and 348/1 to appellant/defendant No. 4 which is not binding on the respondents/plaintiffs since the appellant/defendant No. 1 had only 1/7th share in the suit properties equivalent to that of the respondents/ plaintiffs. In the said premise of the fact, the suit came to be filed. The appellants/defendants No. 1, 2 jointly filed the written statements, while refuting the plaint averments, further pleaded that a partition came to be effected after the death of said Bhanwarlal and in the said partition, the lands bearing survey no. 234 and 248 came to fall in the share of said Kanhaiyalal. The appellant/defendant No. 4 also filed written statement whereby he also refuted the plaint averments and prayed for dismissal of the suit. The learned trial Court by judgment and decree dtd. 27/10/2016 allowed the suit declaring 1/7th share of respondents/ plaintiffs and appellants/defendant No. 1 and 2 and have also declared the sale deed dtd. 4/6/2012 to be null and void. The appellants/defendants No. 1, 2 and 4 being aggrieved by the same, preferred a regular civil appeal before the learned lower appellate Court and vide impugned judgment and decree dtd. 12/1/2021 dismissed the said appeal preferred by the appellants/defendant No.1, 2 and 4.

(3.) On the basis of the evidence which came on record the learned trial Court vide judgment dtd. 27/10/2016 has decreed the suit as under:-